The GOP war on the independence of the judiciary – court packing scheme in Arizona

gavelThere was some recent good reporting on the GOP’s war on the independence of the judiciary in states across the country. This is where the threat from /citizens united and “dark money” campaign spending can be most pronounced and have the most lasting impact.

The AP reported Control of state courts becomes a top political battleground:

Much attention is being paid to the U.S. Supreme Court vacancy, but equally partisan battles are being waged for control of state courts around the nation.

In states where voters elect Supreme Court judges, millions of dollars are being spent to reshape the courts for years to come. Judicial watchdogs say spending by national groups overwhelmingly favors judges on the right of the political spectrum, and is mostly aimed at maintaining or improving the courts’ responses to corporate interests while countering state-level spending by labor unions and other interest groups.

Lawmakers are busy too, debating proposals to tip the balance of power by expanding or reducing their court’s size, or making it easier to impeach judges whose rulings upset the legislative majority.

“State courts are the final word on a host of state law issues that have high stakes for businesses’ bottom lines, legislatures’ agendas and the rights of individuals,” said Alicia Bannon with the Brennan Center for Justice at New York University. “Who sits on state courts can have a profound impact on the legal landscape in a state, and special interest groups and politicians are increasingly paying attention.”

State supreme court elections have begun to resemble the rough-and-tumble, high-dollar campaigns associated with races for governor or Congress. Voters in about two dozen states are casting ballots for state supreme court justices this year. Spending for two Arkansas Supreme Court seats alone topped $1.6 million, setting a state record for TV ad buys in a judicial election.

The [right-wing] Judicial Crisis Network, which is spending millions campaigning against President Barack Obama’s Supreme Court nominee Merrick Garland, and the Republican State Leadership Committee were successful in seeing their candidates elected, including a new chief justice who says he’s guided by “prayer, not politics.”

The races were so acrimonious that some Arkansas Republicans are considering ending popular elections for the top court, while some Democrats want more transparency by outside spending groups.

Wisconsin voters also [were] exposed to months of TV ads [in] support of Justice Rebecca Bradley, a conservative whom Republican Gov. Scott Walker promoted through the judicial system and onto the state’s top court in just three years. Now she’s seeking a full, 10-year term.

The conservative Wisconsin Alliance for Reform has spent at least $1.5 million on TV ads for Bradley, while the liberal Greater Wisconsin Committee has spent at least $345,430 supporting Appeals Court Judge JoAnne Kloppenburg, who would narrow the court’s conservative majority if elected. Both totals reflect Federal Communications Commission records of TV buys analyzed by the judicial campaign watchdog Justice at Stake.

[UPDATE: Rebecca Bradley defeats JoAnne Kloppenburg for 10-year term]

Partisan control of Pennsylvania’s Supreme Court flipped last fall after six candidates for three open seats combined for $12.2 million in contributions and two independent groups spent an additional $3.5 million. Democrats swept all three races, taking five of the seven seats after six years of Republican control.

A race in Kansas is likely to be another big-money battleground. Groups supportive of Republican Gov. Sam Brownback and the GOP-controlled Legislature will be looking to oust four of the five justices up for retention elections in November, enabling Brownback to select their replacements to the seven-member court. [More on this below.]

Lawmakers also are weighing changes to their systems of electing, appointing or retaining judges, mostly trying to limit the power of state courts to overrule them.

A bill in Oklahoma would allow voters to overturn some state Supreme Court decisions. Washington lawmakers are weighing whether to not only shrink their Supreme Court from nine justices to five, but also force judges to run in districts rather than statewide. One lawmaker said this could prevent an “intensely liberal concentration” in the Seattle area from diluting the influence of Republicans in the rest of the state.

“There has been an anger and frustration that legislative efforts have been enacted and then within one, two or three years those statutes have been struck down as unconstitutional,” said Bill Raftery, an analyst at the National Center for State Courts, a nonprofit research organization.

After the Kansas Supreme Court ordered the legislature to restore school funding, the state’s senators approved a bill enabling the impeachment of justices who attempt to “usurp the power” of lawmakers and executive branch officials. The House has yet to take it up.

Critics have said the measure would remove the court’s independence by threatening the justices’ careers if the court strikes down a law.

“It totally handicaps the Supreme Court,” Republican state Rep. Steve Becker, a retired district court judge. “It would render the Supreme Court useless, basically.”

Missouri lawmakers also proposed a plan to make it easier to impeach justices.

Increased populations and caseloads require expanding the Supreme Courts in Arizona and Georgia, supporters say; Critics argue that in both states, Republicans simply want to add more judges who will vote in their favor.

The expansion of Georgia’s Supreme Court from seven justices to nine now awaits the signature of Georgia Gov. Nathan Deal, who pushed for the change. Between the expansion and anticipated retirements, Deal could select four more justices before his term ends.

In Arizona, Republican state Rep. J.D. Mesnard said during a committee hearing that expanding the court from five to seven justices would “spread that power out to more people.” He emphasized that Republican Gov. Doug Ducey had not approached him about the bill, and said “I would feel this way regardless of who is on the court or regardless of the decisions that have come down.”

Democratic Sen. Martin Quezada said the plan could be seen as an effort to “pack” the court with conservative justices, and suggested delaying implementation until the next governor takes office. That might not be until January 2019, if Ducey doesn’t win a second term. A Republican colleague noted the irony of a Democrat suggesting such a delay, given the party’s frustration over the U.S. Senate Republicans’ refusal to consider Obama’s nominee.

Mesnard acknowledged that it can be difficult sometimes to separate politics from policy.

“If the shoe were on the other foot, I’ll just candidly say, if it was a different person appointing, I might feel less comfortable,” he said.

Cartoon_07The Republic’s Linda Valdez commented on the unholy compromise between Supreme Court Chief Justice Scott Bales and the lawless Tea-Publican legislature who want Governor Ducey, the ice cream man hired by Koch Industries to run their Southwest subsidiary formerly known as the state of Arizona, to be able to pack the Arizona Supreme Court with more “Koch-bots” like Clint Bolick from the “Kochtopus” Death Star, the Goldwater Institute. Valdez: Why judges should oppose court packing

The Legislature’s plan to let Gov. Doug Ducey pack the state Supreme Court is not original.

It’s part of a national trend to control or eviscerate the judicial branch.

You could call it the GOP’s hostile takeover of the third branch of government.

Except in Arizona, where Chief Justice Scott Bales is willing to go along in exchange for increased funding.

If it happens in Arizona, it will be a simple sellout.

Wasting money to get money

In Arizona, HB 2537 aims to expand the state Supreme Court by two new justices that the Chief Justice Scott Bales says are not needed.

Bales agreed to go along if the Legislature provides a funding package to the courts of about $10 million.

Don’t think all judges go along with “bargaining for what we do not need to get what we do need,” as Arizona Court of Appeals Judge Patricia K. Norris put it.

The courts need money after significant past budget cuts. Norris says courts face increased dependency petitions and the need for more probation officers.

But she opposes the expansion as a clear case of court packing, and a waste of about $1 million a year on justices who are not needed.

Norris says judges around the state are beginning to talk about a plan that was not well-publicized.

Let’s hope they rise up in protest.

Former Arizona Chief Justice Stanley Feldman says it is “obvious this is an attempt by the administration and the Legislature to expand the court for political reasons.”

He says it’s risky for the court to go along. “Once the Legislature knows the court will bargain for money . . . that’s a very dangerous precedent.”

* * *

Judges in Arizona need to join Norris in decrying this gambit. If the independence of the judiciary is compromised here, it should be the result of a hostile takeover. Not a sellout.

Even the GOP-friendly Arizona Republic editorialized Court expansion is about 1 thing:

Arizona’s Chief Justice Scott Bales says the expansion is not justified based on need or caseload. With the two additional justices estimated to cost about $1 million a year, it’s a waste of money.

Yet the high court is willing to go along if the two costly and unneeded justices also come with about $10 million to make up for past budget cuts and real needs in state’s court system, says Bales.

The court, a co-equal branch of government, should not be forced to abase itself and embrace a bad idea to secure needed funding from the Legislature – nor should it be willing to do so.

The Legislature should not stoop to using the court system’s real funding needs to win support for wasting money on two new justices who are not needed.

Decisions about how the court is funded should be based on need and discussed as part of the budget process — not in the context of a power grab.

Make no mistake: This is about power.

* * *

Gov. Doug Ducey had the opportunity to appoint one justice to the Supreme Court, and he named former Goldwater Institute litigator Clint Bolick in January. In the course of his tenure, Ducey may have the chance to name more justices. That, too, is the result of a fair election. It’s the way the system works.

Remember what the founders said

Expanding the court to give him the chance to pack the court would result in a concentration of power that was condemned as far back as 1788, when James Madison wrote this in Federalist 47:

The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

This is not just some quaint idea from a long time ago. It is a bedrock principle of the Constitution conservatives claim to honor.

This is the time to live up to those principles.

Republicans in the Legislature should reject the court packing plan. If they can’t muster the patriotism to do so, then Ducey should veto a gambit that would bolster his power now at the expense of a system he is sworn to uphold.

Only The Republic’s resident GOP apologist, the patrician prevaricator for the Plutocracy, George Will’s mini-me Robert Robb, said “Pshaw, nothing to see here. Pay no attention to that man behind the curtain as your democracy is taken over by the corporatocy of Plutocrats.” Robb: Don’t hyperventilate over over Arizona Supreme Court expansion.

Finally, there is this op-ed from Erik Eckholm in the New York Times:

Look at the states, where political attacks on judicial decisions are common and well-financed attack ads are starting to jar the once-sleepy elections for State Supreme Court seats.

DorothyNowhere is the battle more fiery than here in Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over State Supreme Court decisions that overturned death penalty verdicts, blocked anti-abortion laws and hampered Mr. Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.

At one point, the L egislature threatened to suspend all funding for the courts. The Supreme Court, in turn, ruled in February that the state’s public schools must shut down altogether if poorer districts do not get more money by June 30.

“A political bullying tactic” and “an assault on Kansas families, taxpayers and elected appropriators” is how the president of the Senate, Susan Wagle, a Republican, responded to that ruling, which was based on requirements in the state Constitution. Mr. Brownback spoke darkly of an “activist Kansas Supreme Court.”

In March, in the latest salvo, the Republican-controlled Senate passed a bill to authorize impeachment of justices if their decisions “usurp” the power of other branches. But the climactic battle is expected in the November elections, when conservatives hope to remake the seven-member Supreme Court in a flash, by unseating four justices regarded as moderate or liberal.

Partisan conflict over courts has erupted in many of the 38 states where justices are either directly elected or, as in Kansas, face periodic retention elections, without an opposing candidate. As conservatives in Washington try to preserve a majority on the federal Supreme Court, politically ascendant conservatives in several states are seeking to reshape courts that they consider to be overly liberal vestiges of eras past.

“We’ve seen this tug of war between courts and political branches all around the country,” said Alicia Bannon, a senior counsel at the Brennan Center for Justice at New York University.

* * *

The impeachment bill is not likely to clear the Legislature this year, but Mr. Brownback is also pushing for an amendment that would give the governor more control over choosing new justices, who are now winnowed through a merit system.

In response to the Supreme Court ultimatum, the Legislature last week passed a plan to give more money to the poorest districts. But the court is also expected to rule in coming months on the more intractable issue of whether the shrunken pool of money for all K-12 education is enough to meet minimum standards.

Since Mr. Brownback took office, state aid has declined to $3,800 per pupil, from $4,400, according to the Kansas branch of the National Education Association. Because of the cuts, some rural districts have disbanded, some schools have closed and, last spring, six districts ended the school year days early to cut costs.

Conservatives have also been angered by court rulings against new abortion restrictions and, along with crime-victim advocates, by rulings in murder cases that overturned death sentences on procedural grounds.

All but one of the seven sitting Kansas justices were appointed by a Democrat, former Gov. Kathleen Sebelius, or by her predecessor, a moderate Republican.

Mr. Brownback has condemned the existing system for choosing justices, in which a committee of five lawyers (selected by their peers) and four non-lawyers (appointed by the governor) provides candidates.

* * *

“This is a full-out power grab by the governor,” Ryan Wright, the executive director of Kansans for Fair Courts, said of the efforts to reshape the courts. His group represents liberal and moderate groups that plan to muster support for the sitting justices.

The state’s conservatives “believe that they should be able to change the court when there is disagreement about decisions,” said Callie Jill Denton, the executive director of the Kansas Association for Justice, the trial lawyers’ trade association.

* * *

Groups that are expected to try to unseat four justices in November have so far been coy about their preparations and fund-raising. “Preliminary things are going on is all I’ll say,” said Mary Kay Culp, the executive director of Kansans for Life, an anti-abortion group.

Charles G. Geyh, a professor at the Indiana University Maurer School of Law and the author of “Courting Peril: The Political Transformation of the American Judiciary,” warned that increasingly bitter, partisan battles threatened to undermine faith in the courts.

“We need to get past the fiction that judges are umpires that just call balls and strikes,” he said. “Ideology will affect their decisions,” he acknowledged, “but we need to give them some breathing room. They are not hijacking the law.”

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4 thoughts on “The GOP war on the independence of the judiciary – court packing scheme in Arizona”

  1. This is frightening stuff that if unchecked by the voters, will lead to the full demise of our democracy.

  2. Where does one go to learn about judges that are on the ballot? I rarely (if ever) see info about their history in the local media.

    • The Arizona Commission on Judicial Performance Review collects information from surveys on judges from the lawyers and jurors in their courtroom. They will issue a rating for retention prior to the election.

      This rating number can be misleading because it only includes responses from those who voluntarily choose to submit the survey, which results in a high rating in most cases, even for judges who are responsible for bad decisions at the appellate court level.

      Two years ago, for the first time, Arizona’s Judicial Performance Review board recommended voters oust two sitting judges.

      This is difficult to do because of the drop off in voter participation on the ballot, especially in judicial retention. Voters don’t have enough information to make an informed decision so they leave it blank; others only vote the top of the ballot races and ignore judicial retention.

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